By Dan Cohen and Jennifer L. F. Cohen
In the waning days of the Biden administration on January 16, 2025, the Office for Civil Rights of the U.S. Department of Education (OCR) issued a Fact Sheet to “clarify” how Title IX will apply to universities’ name, image and likeness (NIL) payments to their student-athletes under the proposed House v. NCAA settlement.
The Fact Sheet was not well received by the industry. Many people were dismissive of it because it was not a legally binding document and was subject to easy withdrawal or change by the incoming Trump administration. Other commentators chafed under an impression that the guidance would mandate equal NIL payments between male and female student-athletes, an outcome that many perceived as impractical and unjust based on revenue generation.
Schools should be careful not to disregard the Fact Sheet too quickly. The Fact Sheet was consistent with long-standing legal precedent for the most part, and the legal standards explained in the text — and in the accompanying citations in the footnotes — are likely to be applicable in future (and probably inevitable) Title IX litigation arising from House payments.
But first, what exactly did the Fact Sheet state?
Athletic Financial Assistance
Although some commentators were surprised, it is likely that Title IX will apply to institutional House payments.
Title IX applies broadly to “any education program or activity receiving Federal financial assistance.”[1] It prohibits sex discrimination in almost everything that a university or its athletics department may do. Under Title IX, “athletic financial assistance includes any financial assistance and other aid provided by the school to a student-athlete that is connected to a student’s athletic participation.”[2] Accordingly, if a school provides any payments – any financial assistance – to a student-athlete because they are on a team (aid “that is connected to a student’s athletic participation”), then it is categorized as “athletic financial assistance.” This likely will cover direct, institutional House payments.
How will Title IX apply to House payments?
Since the Title IX Policy Interpretation was published in the Federal Register in 1979,[3] the standard for assessing equity in the provision of “athletic financial assistance” has been divided into two categories.
Schools are required to provide “athletic scholarships or grants-in-aid . . . for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.”[4] According to the 1979 Policy Interpretation, that “mean[s] that the total amount of scholarship aid made available to men and women must be substantially proportionate to their participation rates.” This analysis focuses on the equitable or proportional distribution of dollars but allows for differences that can be explained by legitimate, non-discriminatory justifications.[5]
However, “[w]hen financial assistance is provided in forms other than grants, the distribution of non-grant assistance will also be compared to determine whether equivalent benefits are proportionately available to male and female athletes.”[6]
It may be tempting to mingle these two different Title IX standards, but OCR ultimately set forth the correct standard for institutional House payments in the applicable Section 4 of the Fact Sheet: “When a school provides athletic financial assistance in forms other than scholarships or grants, including compensation for the use of a student-athlete’s NIL, such assistance also must be made proportionately available to male and female athletes.”[7]
This is not necessarily a dollar-for-dollar proportionality test, as it focuses on availability, not distribution.
This standard has been best understood in the context of Alston academic incentive payments: if Alston awards are made proportionately available to 100 male and 100 female student-athletes, but 98 women and 93 men qualify for, and receive, the awards under the academic criteria – or even a more extreme disproportionality of who qualifies for the awards – then the awards have been made proportionately available even if the monetary amounts are not granted proportionally among the 100 male and 100 female student-athletes.
Further, legitimate, non-discriminatory justifications will remain applicable to explain differences in who qualifies for House payments as well as their amounts, as long as a school’s House payment structure provides for equitable availability.
Title IX also requires equitable treatment as schools assist student-athletes with NIL opportunities
Additionally, Title IX’s requirement that schools provide equivalent benefits, opportunities and treatment in their athletics programs[8] applies to NIL opportunities. OCR particularly focused on the provision of publicity and support services in the Fact Sheet.[9]
Regarding equitable publicity, OCR stated that “[a] school’s obligation to provide equivalent publicity based on sex continues to apply in the context of NIL. For example, if a school is not providing equivalent coverage for women’s teams and student-athletes on its website, in its social media postings, or in its publicity materials, these student-athletes may be less likely to attract and secure NIL opportunities.”[10]
For support services, OCR reminded schools that “any services that schools provide to assist student-athletes in securing or managing NIL opportunities” should be provided equitably, including NIL education services. Further, “if athletics department employees assist the school’s student-athletes by obtaining and negotiating NIL agreements, OCR would examine whether the school is providing this assistance [equitably] to student-athletes on men’s and women’s teams.”[11]
Although OCR merely reiterated two long-standing Title IX equitable treatment obligations,[12] they serve as important reminders to schools not only of their legal obligations under Title IX, but also that student-athletes’ experiences and perceptions are shaped by the “fairness factor,” which directly relates to the equitable provision of visible reminders that they are valuedby the athletic department and equitably supported in pursuing NIL opportunities.
Of course, legally speaking, a Title IX equitable treatment analysis ultimately involves an aggregated analysis across all teams and all program areas, and legitimate, non-discriminatory justifications will be available to explain differences in publicity and support services.[13]
Conclusion
The key, as always, to Title IX compliance is in the implementation – the details of how schools are implementing their House structures. Schools can make their House payments equitably available to all student-athletes, but differentiate payment amounts based on legitimate, market-based factors. And schools can augment their publicity efforts to increase the visibility of all student-athletes, so they can attract third-party NIL deals.
Of course, there are many nuances to the implementation beyond those high-level points, particularly an understanding of what may or may not constitute legitimate and non-discriminatory justifications. With a likelihood that future Title IX litigation will arise under House, schools should stay aware of long-standing Title IX requirements, some of which are accurately restated in OCR’s Fact Sheet and which should not be dismissed as a midnight-hour missive by the exiting administration.
Dan Cohen is an attorney at Barnes & Thornburg. He can be reached at DCohen@BTLaw.com.
Jennifer Cohen is an attorney in Atlanta.
This publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.
[1] 20 U.S. Code § 1681.
[2] Fact Sheet at 7 (emphasis added) (citing to 1979 Policy Interpretation and OCR 2015 Dear Colleague Letter, available at https://www2.ed.gov/about/offices/list/ocr/correspondence/stakeholders/20151112-cost-attendance-ath-scholarships.pdf).
[3] 1979 Policy Interpretation, 44 Fed. Reg. 71,413 (Dec. 11, 1979).
[4] 34 C.F.R. § 106.37(c)(1) (emphasis added).
[5] 1979 Policy Interpretation, at 71,415, at Section VII.A.3.a. (emphasis added).
[6] 1979 Policy Interpretation, at 71,415, at Section VII.A.3.b. (emphasis added).
[7] Fact Sheet at 8 (emphasis added).
[8] 1979 Policy Interpretation, at 71,414.
[9] Fact Sheet at 6-7.
[10] Fact Sheet at 6.
[11] Fact Sheet at 7. While the Fact Sheet used the word “equally” rather than “equitably,” Title IX equitable treatment requires an analysis of whether men’s and women’s teams’ differing needs are met in the aggregate. See 34 C.F.R. § 106.41(c); 1979 Policy Interpretation, at 71,415-16; Parker v. Franklin County [Ind.] Community School Corp., 667 F.3d 910, 922 (7th Cir. 2012); Portz v. St. Cloud State Univ., 16 F.4th 577, 581 (8th Cir. Oct. 28, 2021).
[12] 34 C.F.R. § 106.41(c); 1979 Policy Interpretation, at 71,417. Without elaboration, OCR also reminded schools that they retain responsibility to treat their male and female student-athletes equitably, even when NIL payments are made by “affiliated” third parties like collectives. Fact Sheet at 8. Again, OCR’s citations are likely more important than OCR‘s direct statement. For this proposition, OCR cited the Eighth Circuit’s ruling on a parallel point: “a public university cannot avoid its legal obligations [to provide athletic equitable treatment] by substituting funds from private sources for funds from tax revenues.” Chalenor v. Univ. of N.D., 291 F.3d 1042, 1048 (8th Cir. 2002).
[13] E.g., 1979 Policy Interpretation, at 71,417.
